Scholarship highlight: Can the Court change Americans’ views?

Katerina Linos is an Assistant Professor at Berkeley Law and Kim Twist is a PhD candidate in the political science department at Berkeley.

Last Term’s decision on the Affordable Care Act, and this Term’s decision on same-sex marriage, place the Supreme Court at the center of American public life. But how exactly do Supreme Court opinions influence the views of ordinary Americans? By constitutional design, the Court’s institutional independence has long guaranteed protection to wronged parties even when their positions are unpopular. Yet the influence of the Court hardly stops there. Many actors who seek social change through the judicial system hope that a favorable ruling will shift the views of most Americans and convince them that a particular law or policy is consistent (or inconsistent) with deeply held constitutional values. For example, when the Court reviewed the Obama administration’s signature health care law just months before national elections, key actors in the ongoing campaigns anticipated that its ruling could influence the electoral outcome. President Obama presented the Court’s opinion as an endorsement of his policies, while Republican presidential candidate Mitt Romney took great pains to clarify that, while the law may not violate the Constitution, it was still bad policy.

Given the importance of the Court’s rulings, it is surprising how little we know from prior academic studies, and how inconsistent the results of these studies are. Observational studies track American public opinion on various issues over many decades, and are based on data collected for other purposes, such as the General Social Survey. These studies tend to find no significant net change after a Supreme Court ruling, although they report that the Court can polarize opinion and push some groups in opposite directions. In contrast, experimental studies, in which a researcher informs respondents about a (usually fictitious) Court decision, often find that respondents increase their support for laws and practices after hearing that the Court has found them constitutional.

We present the results of a new study, which offers significant methodological improvements over past studies by combining experimental and observational elements. We examined how information received (or not received) by individuals through their regularly watched television news channels compares to information they receive in the course of an experiment. We built our study around the Court’s recent decisions on the Affordable Care Act (NFIB v. Sebelius) and Arizona’s immigration restrictions (United States v. Arizona). Because the health care decision upheld a law championed by Democrats, while the immigration decision upheld (at least for now) the centerpiece of a law championed by Republicans, we were able to examine how people responded to both a liberal and a conservative decision. In anticipation of the Court’s rulings, we surveyed a representative sample of Americans to measure their support for the key pieces of each law: the health care law’s individual mandate and the immigration law’s “show your papers” provision.

After the Court issued its rulings, we returned to the same participants to investigate changes in their views. In this second wave, we randomly assigned participants to four different groups and varied the information that each group received about the ruling. The first group received no information about the decisions from us; they only received information from the media sources they regularly use. The second group received a reminder from us summarizing the Court’s holding, and specifying that the challenged provisions had been upheld. The third group was also informed about the main argument in support of the Court’s majority. The fourth group was given one additional piece of information, an argument from the dissent.

We found that even when ruling on highly controversial and politicized issues – such as the health care and immigration rulings we considered – the Supreme Court can change public opinion. For example, among people who received no reminder from us, aggregate support for the individual mandate increased by 6 percentage points, from 31% before the Court’s decision to 37% after. This shift and all the other shifts we describe below are highly statistically significant. In addition, other polling on the Affordable Care Act suggests that support increased soon after the Court decision, and that this bump persisted in later months.

One goal of our research was to compare experimental and observational stimuli. Experimental studies could yield larger effects than observational studies for a variety of reasons, including experimenters’ ability to expose everyone (not just people who follow the news) to information, and to frame Court decisions in particular ways. We found that a large majority of Americans had, before we gave them any information, already heard and correctly understood the health care ruling. As a result, responses to experimental reminders were generally very similar to responses to real-life news coverage. The only experimental frame that made a significant difference was the reminder that included information about the dissent. Dissenting Justices argued that government should not force Americans to buy a product they do not want. People whom we randomly selected for exposure to the dissent’s argument maintained their original views on the individual mandate, unlike people in all the other conditions, who increased their support for the mandate after the Court upheld it. Interestingly, people who were extensively exposed to the dissent’s arguments because they chose to watch Fox News responded in a very similar way to people whom we exposed to the dissent and retained their original opinions.

News coverage of the immigration decision was more limited and less straightforward than coverage of the health care case. Even in this case, however, we observed an increase in support for the “show me your papers” provision after the Court upheld it among people who followed the news and received no reminder from us. However, we were able to further increase the size of this effect in the course of the experiment by reminding people of what the Court had decided in this case, and by informing them of the majority’s argument and of the fact that the provision had been unanimously upheld.

The net effects we have described so far obscure significant variation in how different people responded to the Court rulings. After the health care ruling, we found very large increases in support for the individual mandate among Democrats and independents, while Republicans retained their highly negative attitudes on this law. Independents were also very responsive to the immigration ruling, and became much more supportive of the “show your papers” provision. This pattern suggests that Court can move independents’ views in both the conservative and the liberal direction. We also found that people who expressed high levels of trust in the Court prior to the decisions were especially likely to follow the Court’s lead and increase their support for the laws after the Court upheld them. In addition, the immigration ruling generated strong backlash among Hispanics, and in particular, among Hispanics who regularly watch either Univision or Telemundo, two networks that devoted extensive time to critical coverage of the Court’s decision.

These findings suggest that the Supreme Court can lead American opinion and contribute significantly to processes of social change. The Court’s ability to shape the views of independent voters is especially noteworthy, as these are often the swing voters critical to election outcomes. That said, powerful dissents can greatly limit the Court’s influence.

These findings also open up several avenues for further research. One question that intrigued us concerns the role of the media in transmitting information about Court decisions. Our preliminary analysis suggests that some Americans end up following not only the outcome of major cases, but also aspects of the Court’s reasoning. Extensive and critical coverage of the health care decision on Fox News, and of the immigration decision on Spanish-language television, likely made these networks’ audiences very knowledgeable about the Court. A second question that we plan to investigate further involves trust in the Court. So far, our story can be seen as an optimistic one, in which the Court is able to persuade significant numbers of Americans about the wisdom of the policies it upholds. But what happens among the many people who still disagree with the Court’s rulings? Under what circumstances does disappointment with particular rulings translate into a loss of trust in the Court as an institution? We plan to further research these questions, and are hopeful that our unique dataset can shed much-needed light on these points.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.